parent nodes: arbitrariness review | Article II | Constitution | Dames and Moore v Regan | Ex parte Milligan | executive administrative power | implied limits on Congressional power | judicial power | Morrison v Olson | presidential power | separation of powers | standing | Steel Seizure Case
presidential power
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Constitution, Article I, § 1, cl 1
The executive power shall be vested in a President of the United States of America.
Constitution, Article II, § 1, cl 1
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Constitution, Article II, § 2, cl 1
(The President) shall take care that the laws be faithfully executed...
Constitution, Article II, § 3, cl 1
Interpretation
Case law
Jackson test (Steel Seizure Case, Jackson, J, concurring)
Presidential powers "are not fixed but fluctuate" depending on the relative position of Congress. Jackson lays out three "over-simplified" categories of such relative positions:
(1) When the President acts under the express or implied consent of Congress, the President enjoys "maximum" authority, so that his power is the sum of Article I and Article II powers. In this sense, the President "personif(ies) the federal sovereignty." If the President's action is still unconstitutional, it is because the federal government as a whole lacks the power to do such action.
(2) if the president acts without Congress' consent or denial of consent, he can rely upon "his own independent powers," or perhaps within the "zone of twlight" where the Congress may have concurrent authority or the distribution of power is uncertain. In this case, Congressional "inertia" might "enable, if not invite," "independent presidential responsibility." In this case the "actual imperatives of events" and "contemporary imponderables" should control.
(3) If the President's action is "incompatible" with Congressional action, his power "is at its lowest ebb," or whatever power he has left after Congress' Article I power. Courts may sustain presidential power here only by holding that Congress has no power to act.
Note that (2) is effectively reinterpreted by Dames and Moore v Regan, which interprets Congressional will through the "general tenor" of its actions, especially the relevant text of statutes granting similar powers, so that in an emergency the President might be able to act in a manner broadly consistent with previous Presidential action.
Textualist theories
Article I grants "lawmaking" power to Congress, while the President may only "execute" the laws." Steel Seizure Case (Black, J, for the Court).
Alternatively, Congress may later ratify emergency Presidential action, until and unless it does so the Presidential power is unconstitutional. Steel Seizure Case (Douglas, J)
Note, however, that Article I provides Congress "all legislative power herein granted," while Article II provides without qualification "executive power" to the President.
Historical theories
"(A) systematic, unbroken executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on executive power vested in the President by § 1 of Article II." Steel Seizure Case (Frankfurter, J).
Note the inconsistent results of this method in the different opinions.
Other considerations
- perhaps the courts should intervene in interbranch disputes if individual rights are involved
- the role of political forces to provide informal constraints where judicial intervention would create a rule with unfavorable long-term effects
Cases
Steel Seizure Case
Dames and Moore v Regan
Specific subjects of executive power
foreign affairs power
treaty power
[alias: executive power]